Civil Rights and Union Organizing

With unions nearing extinction in the private sector and under relentless attack in the public sector, making union organizing a civil right could help revive the battered U.S. labor movement.

A bill recently proposed by Rep. Keith Ellison (D- Minn.) and Rep. John Lewis (D-Ga.) would extend that right to union organizers.

By defining organizing a fundamental right, the bill would provide workers with the protection against discrimination now enjoyed by minorities. Under the legislation, workers who are fired for organizing would have the right to sue their employers for damages in federal court.

“Most people want a union, but they need a job,” Ellison said on July 30, when he and Lewis introduced the bill.

He said that the legislation would help make union organizers less fearful about retaliation by employers, who often fight organizing drives by hiring anti-union law firms, firing and disciplining organizers, and holding captive meetings to persuade workers to vote against forming a union in their workplace.

“Too often, employees seeking to unite with their co-workers to demand better wages, benefits and workplace safety provisions face aggressive and often illegal anti-union campaigns coordinated by their employer,” said Mary Kay Henry, president of Service Employees International Union, in a statement backing the bill. “Intimidation, illegal firings, wrongful discipline and other tactics aimed at breaking workers’ will are commonplace when they seek to join together on the job.”

Today, union organizers can file a complaint with the National Labor Relations Board if they are fired. But the best remedy they can hope for is to be reinstated with back pay. By allowing for punitive damages, the Ellison-Lewis legislation would open up employers to very costly lawsuits and embarrassing publicity.

“The unfortunate reality is that discrimination in the workplace persists and employees are still wrongly fired or demoted for union activity while employers have ample resources to intimidate workers for organizing,” said Lee Saunders, president of the American Federation of State, County and Municipal Employees, in a statement. The legislation, he said, “will enhance workplace protection by allowing victims to receive remedies, including back pay and damages….Workplace discrimination hurts all workers, and disproportionately hurts minorities and women.”

Strengthening the Labor Movement

The blueprint for the Ellison-Lewis legislation comes from “Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice,” a 2012 book by Richard D. Kahlenberg, a senior fellow at the Century Foundation, and Moshe Z. Marvit, a labor and job discrimination lawyer.

“By making labor a civil right, the hope is to make the labor movement itself stronger,” Marvit said in an interview with thenewcrossroads.com. With the court option, unions should be able to embark upon more sophisticated and aggressive organizing campaigns, he said.

By extending protections of Title VII of the Civil Rights Act to union organizers, Ellison and Lewis’ Employee Empowerment Act would presumably make employers less likely to use illegal tactics to try to thwart organizing campaigns.

“The penalties now are extremely weak,” Kahlenberg said. He noted that when the National Labor Relations Board orders workers to be reinstated and receive back pay, employers are allowed to subtract any earnings the employees received after their firing.

Under the Employee Empowerment Act, aggrieved workers would be covered by Title VII of the Civil Rights Act, allowing them to seek substantial damages in federal court. They’d be able to force their boss to testify in court. They would also have the right to discovery, which means they could demand to see employers’ files and e-mail messages. Today, they don’t enjoy any of those rights, Kahlenberg pointed out.

Both Kahlenberg and Marvit acknowledge that the United States ultimately needs to carry out more far- reaching reform of its labor laws to address the imbalance of power between workers and employers. But over the past half-century, Democrats have been unable to enact labor law reform during four presidencies in which they have also controlled the House and Senate, suggesting comprehensive reform is unlikely anytime soon.

“One reason law reform has never passed is that it is very complicated and it doesn’t excite the general population, “Kahlenberg said. “A civil rights approach is something that is very easy for everyone to understand. People study the civil rights movement in school, but they aren’t taught about labor rights.”

During the Eisenhower years in the 1950s, employers generally accepted the right of workers to organize unions. But as labor unions declined and power shifted to corporations in subsequent decades, employers felt—correctly–that they could get away with more aggressive anti-union practices.

Changing the Political Discourse

Making the right to organize a civil right would help alter the political discourse in the country, Marvit said.

“Labor law now exists in a sort of black hole,” Marvit said.

“Thinking of labor as a civil right changes the conversation,” he said. “With the new law, labor organizing would come to seen as a basic right like freedom of speech and freedom of association.”

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